Waukesha County Employees Union, Local 1365, AFSCME, AFL-CIO, filed a
complaint
with the Wisconsin Employment Relations Commission on July 17, 1998, alleging that
Waukesha
County had committed prohibited practices by refusing to bargain with the Union separately
from
other County bargaining units. Thereafter, the complaint was held in abeyance pending
efforts to
resolve the dispute. Those efforts were unsuccessful and on September 2, 1998, Waukesha
County
filed a motion to dismiss the complaint, along with supporting arguments, affidavit and
exhibits. On
October 1, 1998, the Union filed its response in opposition to the motion to dismiss. The
Commission appointed a member of its staff, David E. Shaw, as Examiner to make and issue
Findings
of Fact, Conclusions of Law and Order. The Examiner issued his Order Denying Motion to
Dismiss
on October 19, 1998,

No. 29477-B

Page 2

Dec. No. 29477-B

and set the matter for hearing. On November 18, 1998, the County filed its answer
denying it had
committed any prohibited practices and raising certain affirmative defenses. Hearing was
held before
the Examiner on November 24, 1998, in Waukesha, Wisconsin. A stenographic transcript
was made
of the hearing. The post-hearing briefing schedule was completed by January 14, 1999.

Having considered the evidence and arguments of the parties, the Examiner makes
and issues
the following

FINDINGS OF FACT

1. Waukesha County, hereinafter the County, is a municipal employer with its
primary
offices located at the Waukesha County Government Center, 1320 Pewaukee Road,
Waukesha,
Wisconsin 53188. James H. Richter has been employed by the County since September 1,
1978 and
as the County's Labor Relations Manager he is responsible for collective bargaining, contract
administration, employe benefits and risk management on behalf of the County.

2. Waukesha County Employees Union, Local 1365, AFSCME, AFL-CIO,
hereinafter
Local 1365, is a labor organization affiliated with Wisconsin Council 40, AFSCME,
AFL-CIO,
hereinafter the Union, which has its principal offices at 8033 Excelsior Drive, Suite "B",
Madison,
Wisconsin 53717-1903. At the time the instant dispute arose, Christine Bishofberger was,
and
continues to be, the Union's District Representative representing Local 1365.

3. By letter of September 1, 1969, the Union's then-District Representative,
Walter
Klopp, requested that the County voluntarily recognize Local 1365 as the exclusive
bargaining
representative of certain of its Park and Planning Department employes. Said letter read, in
relevant
part, as follows:

Gentlemen:

Local 1365, AFSCME,
AFL-CIO, in behalf of the Waukesha County Park Employees
of the Park and Planning Commission, does hereby respectfully request recognition as the
exclusive
bargaining representative for all Park employees, excluding professional and technical
employees,
supervisors and (sic) defined in the Act, and excluding all other Waukesha County employees
except
as previously recognized by the County in appropriate bargaining units represented by the
Union, in
all matters relating to wages, hours, & other conditions of employment.

Page 3

Dec. No. 29477-B

We request recognition for the Park employees in
keeping with the intent and spirit
of Article II, Section 2 of the agreement between the parties which allows for the amending
of the
agreement to include employees not currently represented.

Should the County desire proof that a substantial
majority of the park employees
desire representation by Local 1925 (sic), we shall be happy to present the signed application
for
membership cards from this group. The Park employees, for purposes of mutual interest,
have joined
with the Highway Department Employees. Granting recognition in this manner would be
similar to
the County's recognition of the Health Department Unit.

. . .

The County subsequently requested that the Union provide it with evidence as to the
desire of the
majority of eligible Park employes. The Union complied with that request and the County
subsequently voluntarily recognized Local 1365 as the exclusive bargaining representative of
the Park
and Planning Department employes. By letter of September 24, 1969, Klopp requested that
for
purposes of dues checkoff and other matters the "Park maintenance employees are members
of the
Waukesha County Highway Department Employees, Local 1365." The Park and Planning
Department employes were included in the unit represented by Local 1365.

4. The Union and the County negotiated a 1970 collective bargaining agreement
covering
the wages, hours and conditions of employment in the various groups of employes
represented by the
Union's affiliated locals. That Agreement contained "Article II ­ Recognition and
Bargaining Units",
which listed the various units that had been certified by the Wisconsin Employment Relations
Commission or voluntarily recognized by the County, along with the unit descriptions,
including the
following:

1. The County of Waukesha
recognizes the "Union" referred to herein as Wisconsin Council No.
40, County and Municipal Employees, affiliated with AFSCME AFL-CIO, and its
appropriate
affiliated local units of local Union No. 1365 as the exclusive collective bargaining agent on
behalf of the employees of the County of Waukesha as certified by the Wisconsin
Employment Relations Board or as recognized by the County of Waukesha in accordance
with the following designations:

Page 4

Dec. No. 29477-B

a. All Waukesha
County Highway Department employees, but excluding supervisors,
office employees, and craft employees as certified by the Wisconsin Employment
Relations Board, under date of June 14, 1966, herein referred to as local Union No.
1365.

1) All Waukesha County Park and Planning maintenance
employees, but
excluding supervisors, office employees, and professional staff, as voluntarily
approved at the meeting of September 12, 1969.

2) Waukesha County recognizes AFSCME Council No. 40
and its affiliate No.
1365 as the exclusive bargaining agent for the employees classified as Park
Maintenance Men and Greenskeepers.

. . .

Article II also contained the following provisions:

2. Should the "Union" following
certification by an appropriate governmental Wisconsin
Employment Relations Agency or upon recognition by the County of Waukesha become the
collective bargaining agent for other employees of the County of Waukesha not heretofore
included in Articles I and II hereof, it is agreed that Article II of this agreement, upon the
written consent of the parties hereto may be amended to include the employee unit last
certified or recognized.

3. Employees
recognized in this agreement, unless otherwise herein specified or as stipulated in
an appendix hereto, shall in all matters of County policy or procedure be treated as one (1)
party.

The parties' 1970 Agreement contained provisions that applied to all of the employes
in the
listed units and also had attached appendices that contained provisions that applied only to the
employes in the specified unit. There was such a separate appendix containing provisions
covering
the employes of the County's Highway Department and Parks Department, and under the
"Classification Compensation Schedule" for the "Parks Department" the following
classifications
were listed: Park Maintenance Man I, Park Maintenance Man II, Park Maintenance Man III
and
Greenskeeper I.

Page 5

Dec. No. 29477-B

5. In 1975, Teamsters General Local Union No. 200, petitioned the Commission
for an
election among:

All Waukesha County Highway Department employees,
excluding supervisors, office
employees, and craft employees; and all Waukesha County Park and Planning Department
employees
in the classifications of Park Maintenance men and greens keepers, but excluding
supervisors, office
employees, and professional employees.

(Case XXIX, No. 19222,
ME-1203)

At hearing on said petition, the Union intervened as the current
representative of the employes in the
claimed unit. In the course of the proceeding, the Union alleged that the unit sought by the
Teamsters
was inappropriate in that it would fragment the existing collective bargaining relationship
between
the County and the locals affiliated with the Union that represent the various groups of
employes and
because the employes in the Highway Department and the employes in the Parks Department
did not
share a sufficient community of interest. The Union also took the position that the two
groups of
employes had never been considered to constitute one unit and that if units were to be
combined, the
appropriate unit would consist of all units then covered by the collective bargaining
agreement
between the Union and the County.

The Commission subsequently issued its decision in Waukesha County, Case XXIX
on
December 1, 1975, Dec. No. 14157, wherein it directed elections to be held in a unit
consisting of
"All regular full-time and regular part-time employes of the Waukesha County Highway
Department.
. ." and in a unit consisting of "All regular full-time and regular part-time employes of the
Waukesha
County Park and Planning Department in the classifications of Park Maintenance Man and
Greenskeeper. . ." The Commission concluded as a factual matter that the existing
bargaining
relationship between the Union and affiliated locals and the County "developed out of mutual
convenience and not as a result of any significant community of interest" among the
employes in the
nine existing separate units covered by the master contract at the time. Said elections were
held in
the two separate units. Two employes listed on the eligibility list as eligible to vote in the
Park and
Planning Department unit, Donald Stickles and John Lahmayer, worked as carpenters in that
department at the time. On January 5, 1976, the Commission issued the following
Certification of
Results of Election in the two units:

Highway Department Unit

. . .

IT IS HEREBY CERTIFIED that Teamsters
"General" Local Union No. 200 a/w
International Brotherhood of Teamsters, Chauffeurs,

Page 6

Dec. No. 29477-B

Warehousemen and Helpers of America, has been
selected by a majority of the eligible
employes of the County of Waukesha who voted in said election in the collective bargaining
unit
consisting of all regular full-time and regular part-time employes of the Waukesha County
Highway
Department, excluding confidential, professional and craft employes, supervisors, and office
and
clerical employes, as their representative; and that pursuant to the provisions of Section
111.70,
Wisconsin Statutes, said Union is the exclusive collective bargaining representative of all
such
employes for the purposes of collective bargaining with the above named Municipal
Employer, or its
lawfully authorized representatives, on questions of wages, hours and conditions of
employment.

Park and Planning Department Unit

. . .

IT IS HEREBY CERTIFIED that Wisconsin
Council of County and Municipal
Employees, Wisconsin Council No. 40, Local Union No. 1365, AFSCME, AFL-CIO, has
been
selected by a majority of the eligible employes of the County of Waukesha who voted at said
election
in the collective bargaining unit consisting of all regular full-time and regular part-time
employes of
the Waukesha County Park and Planning Department in the classification of Park
Maintenance Man
and Greenskeeper, excluding confidential, professional and craft employes, supervisors, and
office
and clerical employes, as their representative; and that pursuant to the provisions of Section
111.70,
Wisconsin Statutes, said union is the exclusive collective bargaining representative of all such
employes for the purposes of collective bargaining with the above named Municipal
Employer, or its
lawfully authorized representatives, on questions of wages, hours and conditions of
employment.

6. Since 1975, the County and the Union have continued to
negotiate the wages, hours
and conditions of employment of all of the employes in the units represented by the Union's
affiliated
locals at the same time, resulting in a "Master Contract" covering all of those employes.
The County
and the Union have, at times, met to negotiate specific issues unique to a particular unit, and
the
Master Contract has contained separate appendices containing provisions that apply only to
employes
in a specific unit.

7. In 1995, the County consolidated a number of its departments, including the
Park and
Planning Department, to create a Park and Land Use Department. Included in the Park and
Land Use
Department are employes in the Park Maintenance Worker, Park Foreman and Golf Course
Superintendent classifications, which are the current classification titles of

Page 7

Dec. No. 29477-B

what had previously been the Park Maintenance Man and Greenskeeper classifications.
In addition
to the 15 Park Maintenance Workers, six Parks Foremen and three Golf Course
Superintendents,
there are also clerical employes, Sanitarians, an Archivist, a Museum Exhibit Technician,
two
Carpenters, a Lead Exposition Center Worker and an Exposition Center Worker in that
department
who are also covered by the Master Contract between the County and the Union. There is a
total of
115 employes in the Park and Land Use Department, the Director is the administrative head
of that
Department and there are six divisions each headed by a manager: Parks Systems, Planning
and
Zoning, Land Conservation, Environmental Health, Solid Waste and Business. The Park
Maintenance Worker, Park Foreman and Golf Course Superintendent classifications are in
the Parks
System Division.

8. The Union and the County are party to a 1996-1998 Master Contract which
contains
a number of appendices, each of which apply to a separate group of employes, including the
following
appendix:

APPENDIX TO MASTER AGREEMENT

BY AND BETWEEN

THE COUNTY OF WAUKESHA

AND

WISCONSIN COUNCIL NO. 40

COUNTY AND MUNICIPAL EMPLOYEES

AND

LOCAL UNION NO. 1365

PARKS DEPARTMENT

Conditions of employment and other matters agreed to
between the Employer and Union in
this Appendix shall not apply to or be a precedent for serving as a rule of course of action
under any
other local Union Appendix to the Master Agreement herein referred to.

PARKS DEPARTMENT

1. Hours of Work

A. County Parks The normal work schedule for regular full-time
employees assigned to
County parks shall be eight (8) consecutive hours per day, Monday through Friday,
scheduled from 8:00 a.m. to Noon and 12:30 p.m. to 4:30 p.m.

Page 8

Dec. No. 29477-B

B. Golf
Courses The normal work schedule for regular full-time employees assigned to
County golf courses shall be eight (8) consecutive hours per day, Monday through
Friday, scheduled as follows:

7:00 a.m. to Noon ­ 12:30 p.m. to 3:30 p.m.

During the
months of April through November, the time of the normal shift of the Golf
Course Superintendent may be advanced by up to one hour (i.e. up to 6:00 a.m. to 2:30
p.m.)
Wherever possible, employees will be notified of shift time changes at least one week in
advance.

2. Temporary
Foreman ­ An employee acting as a Park Foreman or Golf Course Superintendent
shall receive the Park Foreman or Golf Course Superintendent rate provided that he works
at least one (1) full day.

3. Part-time and
seasonal employees shall not work in excess of forty (40) hours per week on
work normally performed by regular full-time employees who are qualified and available to
perform that work unless all such full-time employees are working or are unavailable for
work.

4. When
overtime is required at the end of the normal workday, the employer shall give as much
advance notice as possible, but no less than two (2) hours except in the case of emergencies.

5. Employees
assigned to park and golf course maintenance will be provided with three (3)
uniform changes per week. A uniform change consists of a shirt and pants.

The wage appendices of the 1996-1998 Master Contract lists the wages for the
following
classifications under the heading of "Park Department": Park Maintenance Worker,
Exposition
Center Worker, Golf Course Superintendent, Park Foreman, Lead Exposition Center
Worker. The
employes in those classifications, as well as two employes in the Carpenter classification
have
authorized that their union dues deductions be paid to Local 1365.

The parties' 1996-1998 Master Contract also contains the following provisions, set
forth in relevant
part:

Page 9

Dec. No. 29477-B

AGREEMENT

This Agreement made and entered into at the City of
Waukesha, Wisconsin, by and between
the County of Waukesha, State of Wisconsin, a municipal body corporate, as municipal
employer,
hereinafter referred to as the "County" or "Employer" and Wisconsin Council of County and
Municipal Employees, Council No. 40, AFSCME, AFL-CIO, and its "Local Unions", Nos.
1365 and
2494, hereinafter referred to as the "Union" for the purpose of maintaining harmonious labor
relations, improving employee efficiency and the quality of service rendered to the County
and public,
maintain a uniform scale of wages, working conditions, and hours among the employees,
members
of the Union, and to facilitate a peaceful adjustment of all grievances which may arise
between the
County and the employees represented by the "Union".

. . .

ARTICLE III

RECOGNITION AND BARGAINING UNITS

3.01 The Employer hereby recognizes
the Union, referred to herein as the Wisconsin Council of
County and Municipal Employees, AFSCME, AFL-CIO, and its affiliated Local Unions, as
the exclusive collective bargaining agent on matters pertaining to wages, hours, and other
conditions of employment for the bargaining units described below:

1. Units Represented by Local 1365

a. All Waukesha County Park and Planning Department employees in the
classifications of Park Maintenance Men and Golf Course Superintendents,
but excluding supervisors, office employees, and professional employees, as
certified by the Wisconsin Employment Relations Commission, under date of
January 5, 1976, Decision No. 14157.

2. Units Represented by Local 2490 (Formerly Local 97-A and
1365-A)

a. All Waukesha County Institutions employees, but excluding the
Superintendent, Assistant Superintendent, secretary(s), office personnel, all
other employees under

b. All clerical employees, Occupational Therapy Aides,
Licensed Practical
Nurses, and Laboratory Technicians of the Waukesha County Institutions,
excluding confidential employees of the Superintendent, and all other County
employees, as certified by the Wisconsin Employment Relations Commissions,
under date May 21, 1968, Decision No. 8488.

3. Units Represented by Local 2494 (Formerly
1365-B)

a. All clerical, maintenance, and custodial employees employed in the Waukesha
County Courthouse, and all maintenance and custodial employees employed
in the University of Wisconsin, Waukesha facility, excluding elected County
officials, professional employees, craft employees, confidential employees,
supervisory employees, and all other County employees, as certified by the
Wisconsin Employment Relations Commission under date of July 3, 1968,
Dec. No. 8545.

. . .

3.02 Should the Union, following
certification by the Wisconsin Employment Relations
Commission or following recognition by the County of Waukesha, become the collective
bargaining agent for other employees of the County of Waukesha not included in Article III
hereof, it is agreed that Article III of this Agreement, upon written consent of the parties
hereto, may be amended to include the employee unit last certified or recognized.

3.03 Employees
recognized in this Agreement, unless otherwise hereinafter specified, shall in all
matters of County policy or procedure be treated as one (1) party.

Page 11

Dec. No. 29477-B

9. By letter of May 19, 1998 from Bishofberger to Richter, Bishofberger notified
the
County that the employes represented by Local 1365 intended to bargain separately in the
upcoming
negotiations. Richter sent the following response on May 22, 1998 on behalf of the County:

Dear Ms. Bishofberger:

This letter is in response to your
correspondence of May 19, 1998 wherein you have indicated
Local 1365's desire to negotiate separately in the upcoming contract negotiations.

The wages, hours, and conditions
of employment for the Park and Land Use employees
organized under Local 1365 are and have historically been negotiated as a part of and
included in the
Master contract between Waukesha County and AFSCME. It has always been, and
continues to be,
the County's position that these employees are properly placed within the Master contract
and
bargaining with them as a separate unit would unduly fragment the existing unit (Locals 1365
and
2494).

As you are aware, Wisconsin
Statutes provides a statutory directive that allows professional
employees the right to self-determination elections and separate units if they so desire. This
is an
exception to the Statute's anti-fragmentation policy and was the reason the Social Workers
were
allowed to split off from this unit. This statutory right does not apply to the Park and Land
Use
employees.

While these employees do not have
a statutory right to a separate unit for the purposes of
collective bargaining, once negotiations have commenced concerning the Master contract, the
County
would be willing to devote a particular bargaining session or sessions to any issues that you
believe
are unique to the Parks and Land Use Department employees.

If you would like to discuss this in
greater detail, do not hesitate to contact me.

Sincerely,

James H. Richter /s/

James
H. Richter

Labor
Relations Manager

Page 12

Dec. No. 29477-B

By the following letter of June 10, 1998, Bishofberger reiterated Local 1365's demand
to bargain as
a separate bargaining unit:

Re: Local 1365 AFSCME, AFL-CIO

Dear Mr. Richter,

This letter is in response to your
May 22, 1998 correspondence wherein you have refused to
bargain separately with the members of the aforementioned bargaining unit.

Section 111.70(4)(d)2.d., Stats.,
does not expressly authorize the Union or the County to
insist upon coalition bargaining. Doing so as a precondition to negotiating with the County
is a
prohibited practice. (WERC Decision No. 21130-B, 2/22/85)

Secondly, with regard to the
County's position that bargaining separately by the Park and
Land Use employees would "unduly fragment the existing unit", please refer to the Direction
of
Election (Decision No. 14157, 12/1/75) involving the Teamsters, Council 40 and Waukesha
County
where your concerns are specifically addressed in the last paragraph of the memorandum.

I suggest and encourage the County
rethink its position in order to resolve the issue short of
filing a complaint. If I do not hear from the County on or before July 1, 1998, I shall
assume there
is no change in position and will proceed accordingly.

As always, please call with
questions or concerns.

Respectfully,

Christine Bishofberger /s/

Christine Bishofberger

Staff Representative

Waukesha District

Richter sent Bishofberger the following response of June 26, 1998:

Page 13

Dec. No. 29477-B

RE: Local 1365 AFSCME, AFL-CIO

Dear Ms. Bishofberger:

It is a mischaracterization to say
the County is insisting on coalition Collective Bargaining.

The Park and Land Use employees
have been part of the County-AFSCME Master Contract
for 23 years since they voted for continued AFSCME representation. In all respects their
group is
merged into the existing Master Contract. These employees have not had their own contract.

The contract they are a part of
expressly provides for County recognition of them in the
Master Contract and also clearly provides that all employees recognized shall in all matters
of County
policy or procedure be treated as one party.

We do not believe that employees
of any department included in the Master Unit can just walk
away from that contract and interrupt a history of collective bargaining for well over two
decades.
That history has provided stability in labor relations and continuity in the way the parties
have dealt
with their bargaining responsibilities.

The County continues to believe
that separating out this group of employees for separate
contract bargaining would be inconsistent with our long standing collective bargaining
history, the
language of our contract, and the anti-fragmentation policies which have long guided the
WERC.

Sincerely,

James H. Richter /s/

James
H. Richter

Labor Relations
Manager

10. On July 17, 1998, Local 1365 filed the instant complaint of prohibited
practices with
the Commission wherein it alleged that at all pertinent times, it has been the sole and
exclusive
bargaining representative "for all employees of the County of Waukesha Park and Planning
Department in the classifications of Park Maintenance and Golf Course Superintendents,
excluding
supervisory, office employees and professional employees",

Page 14

Dec. No. 29477-B

pursuant to the Commission's certification issued on January 5, 1976, that it notified
the County on
May 19, 1998, that it was exercising its right to bargain separately from the other County
bargaining
units in the upcoming negotiations, and that the County has refused, and continues to refuse,
to
bargain with Local 1365 separately from those other bargaining units in violation of Sec.
111.70(3)(a)1 and 4, Stats.

11. By notice of July 27, 1998, the Union's Staff Representative assigned to
represent
Local 2494 in negotiations with the County for a successor Master Contract, Michael
Wilson, notified
the County that Local 2494 wished to reopen negotiations for a successor agreement and that
it
would be bargaining with the County separately from Local 1365. Richter sent Wilson the
following
response of July 30, 1998:

RE: Your Notice to Re-Open Collective Bargaining

Waukesha County
Employees

Dear Mr. Wilson:

The County is in receipt of your
notice dated July 27, 1998 to open collective bargaining and
your statement that "Local 2494 will be exercising its rights to bargain separately from Local
1365."
As you know, Waukesha County does not believe that the Union is free, unilaterally, to
break off
from the Master Agreement the Park and Land Use employees which have been part of the
County
­ AFSCME Master Contract for 23 years.

The County continues to believe
that separating out that group from the employees remaining
in the Master Contract would be inconsistent with the long-standing collective bargaining
history, the
language of the labor contract and anti-fragmentation policies which have long guided the
WERC.
We enclosed a copy of the letter which was previously sent to Ms. Christine Bishofberger on
the same
issue.

It would be the County's suggestion
that until this matter is resolved, the parties move
forward in their bargaining as we have in the past. The County would agree that bargaining
which
includes the Park and Land Use employees as well as the other employees in the master
agreement
for the current bargaining for a new contract will be without prejudice and will not be
utilized as
evidence in any WERC proceeding.

Page 15

Dec. No. 29477-B

Until this matter is agreed upon or resolved by decision,
however, the County does not agree
to separate bargaining which is unilaterally proposed here.

Sincerely,

James H. Richter /s/

James
H. Richter

Labor Relations
Manager

12. Local 1365 has been, and continues to be, the exclusive bargaining
representative of
the bargaining unit consisting of the employes in the classifications of Park Maintenance
Worker, Park
Foreman and Golf Course Superintendent. Said bargaining unit constitutes a separate
appropriate
bargaining unit.

13. For their mutual convenience, the County and the Union, through its affiliated
Locals,
have engaged in coalition bargaining by meeting and negotiating with regard to the wages,
hours and
conditions of employment for all of the employes in the various bargaining units represented
by those
locals and entering into a "master contract" covering those employes, including the employes
in the
bargaining unit set forth in Finding of Fact 12.

14. The employes in the bargaining unit set forth in Finding of Fact 12 do not
share a
significant community of interest with the employes in the other bargaining units set forth in
the 1996-1998 Master Contract.

15. The County has refused to bargain with Local 1365 separately regarding the
wages,
hours and conditions of employment of the employes in the bargaining unit set forth in
Finding of Fact
12 for the purpose of arriving at a separate collective bargaining agreement covering only
those
employes, and has conditioned bargaining with that bargaining unit as to unit specific issues
on its
engaging in coalition bargaining with the other units covered by the Master Contract as to
issues
common to those units.

Based upon the foregoing Findings of Fact, the Examiner makes and issues the
following

CONCLUSIONS OF LAW

1. The bargaining unit represented by Local 1365, AFSCME, AFL-CIO and
certified by
the Commission January 5, 1976, remains an appropriate bargaining unit within the meaning
of Sec.
111.70(4)(d)2, Stats.

Page 16

Dec. No. 29477-B

2. Waukesha County, its officers and agents, by refusing to meet with Local
1365 for
the purpose of bargaining a separate collective bargaining agreement covering the employes
in the
bargaining unit set forth in Finding of Fact 12, and by conditioning its willingness to meet
and bargain
separately with Local 1365 as to issues unique to that bargaining unit on the Local's
willingness to
engage in coalition bargaining with the other Locals representing the other bargaining units
covered
by the 1996-1998 Master Contract as to issues common to the bargaining units, has refused
to
bargain in good faith in violation of Sec. 111.70(3)(a)4, and derivatively, 1, Stats.

Based upon the foregoing Findings of Fact and Conclusions of Law, the Examiner
makes and
issues the following

ORDER

That Waukesha County, its officers and agents, shall immediately:

1. Cease and desist from refusing to bargain separately with Local 1365,
AFSCME,
AFL-CIO as the representative of a separate collective bargaining unit of employes in the
classifications of Park Maintenance Worker, Park Foreman and Golf Course Superintendent
in the
Waukesha County Park and Land Use Department, for a separate collective bargaining
agreement
setting forth the wages, hours and conditions of employment for those employes.

2. Take the following affirmative action which the Examiner finds will effectuate
the
policies of the Municipal Employment Relations Act:

(a) Post the Notice attached hereto as
Appendix "A" in conspicuous places in the County's
buildings where notices to employes are posted. The Notice shall be signed by the
representative for the County and shall remain posted for a period of thirty (30) days.
Reasonable steps shall be taken to ensure that the Notice is not altered, defaced or covered
by other material.

Page 17

Dec. No. 29477-B

(b) Notify the Wisconsin Employment
Relations Commission in writing within twenty (20) days
of the date of this Order as to the action the District has taken to comply with this Order.

Dated at Madison, Wisconsin this 22nd day of March, 1999.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

David E. Shaw, Examiner

Page 18

Dec. No. 29477-B

APPENDIX "A"

NOTICE TO ALL EMPLOYES

Pursuant to an Order of the Wisconsin Employment Relations Commission, and in
order to
effectuate the purposes of the Municipal Employment Relations Act, we hereby notify our
employes
that:

WE WILL NOT refuse to bargain with Local
1365, AFSCME, AFL-CIO, as the
exclusive bargaining representative of a separate bargaining unit consisting of the employes
of the
Waukesha Park and Land Use Department in the classifications of Park Maintenance
Worker, Park
Foreman and Golf Course Superintendent for a separate collective bargaining agreement
setting forth
the wages, hours and conditions of those employes.

Dated this 22nd day of March, 1999.

WAUKESHA COUNTY

By

Labor Relations Manager

THIS NOTICE MUST REMAIN POSTED FOR THIRTY (30) DAYS FROM THE
DATE
HEREOF, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER
MATERIAL.

Page 19

Dec. No. 29477-B

WAUKESHA COUNTY

MEMORANDUM ACCOMPANYING FINDINGS
OF FACT,

CONCLUSIONS OF LAW AND
ORDER

The Union has filed a complaint of prohibited practices wherein it alleges that the
County has
violated Sec. 111.70(3)(a)4, and derivatively 1, Stats., by refusing to bargain with Local
1365 for a
separate collective bargaining agreement covering the employes of the "Park and Planning
Department" in the classifications of Park Maintenance and Golf Course Superintendent, a
bargaining
unit certified by the Commission in 1975.

The County has filed an answer wherein it denies that the Union is, or has been, a
bargaining
representative for those employes as a separate bargaining unit, denies that those employes
have a
right to bargain separately and denies it has committed a prohibited practice. The County
also asserts
a number of affirmative defenses. The County alleges that (1) the group of employes
claimed by the
Union is not a legally appropriate unit and the County does not have a duty to bargain a
separate
contract with those employes, (2) those employes have been merged for collective bargaining
purposes into the Master Unit and cannot unilaterally demand to bargain separately, (3) the
remedy
sought of an order to bargain with those employes separately would cause fragmentation of
the
Master Unit, inconsistent with the statutes, (4) the County has been willing to negotiate with
the
Union regarding the wages, hours and conditions of employment of these employes as part of
the
bargaining with the Master Unit, and (5) the parties' Master Contract includes this group of
employes, along with others, and they are referenced in the recognition clause as part of the
Master
Unit. Since a change in a bargaining unit is a permissive subject of bargaining, it cannot be
accomplished by the unilateral demand of one party.

Union

The Union first asserts that the County's insistence upon multi-unit bargaining as a
precondition to negotiations violates the duty to bargain in good faith. Section 111.70(1)(b),
Stats.,
states "collective bargaining unit means the unit determined by the Commission to be
appropriate for
the purposes of collective bargaining." The scope of the appropriate unit is a matter left to
the
discretion of the Commission pursuant to Section 111.70(4)(d)2.a., Stats., and in the case of
a
voluntarily-recognized bargaining unit, to the parties themselves. In 1975, the Commission
established the appropriate unit in this case as follows:

"All regular full-time and part-time employes of the
Waukesha County Park and Planning
Department in the classifications of Park Maintenance Man and Greenskeeper who were
employed
by the municipal employer on December 1, 1975, excluding confidential, professional, and
craft
employes, supervisors, and

Page 20

Dec. No. 29477-B

office and clerical employes, except employes as may
prior to the election quit their
employment or be discharged for cause."

In doing so, the Commission weighed and balanced the need for stability and addressed
the anti-fragmentation proscription of the statute, as well as insured that the unique interests
in this group of
employes would not be subordinate to the overall group. Section 111.70(3)(a)4, Stats.,
provides that
it is a prohibited practice for a municipal employer to "to refuse to bargain collectively with
a
representative of a majority of its employes in an appropriate collective bargaining
unit." (Emphasis
added). The statutory duty to bargain is specifically premised upon bargaining at an
appropriate unit
level.

Insistence upon multi-unit bargaining is analogous to an employer's insistence upon
bargaining
taking place in open session or upon the union's conditioning its willingness to meet upon the
employer accepting the union's proposal on who will represent the employer at the
bargaining table.
Those examples relate solely to the manner in which negotiations will be conducted and are
similar
to this case in that the County's demands deal solely with the bargaining process itself. In
both
examples cited above, the Commission ruled that such posturing is a permissive subject of
bargaining
and that it is a refusal to bargain to insist upon such proposals as a condition to negotiations.
Citing,
City of Sparta, Dec. No. 14520 (WERC, 4/76); Walworth County, Dec. No. 12690 (WERC,
5/74); City of Lake Geneva, Dec. No. 12208-B (WERC, 5/74); Racine Unified School
District, Dec. No. 13696-C, 13876-B (WERC, 4/78). To some extent, insistence upon
multi-unit
bargaining is more serious than those cases in that individual employes would relinquish their
statutory rights to choose their own representative. Thus, the will of the coalition would or
could
override the individual bargaining units involved and the individuals within the unit, thereby
hindering
the statutory intent. Further, the intent of Section 111.70(4)(d), Stats., is that the
representative be
chosen by the majority of the employes in the appropriate bargaining unit. The existence of
a
coalition seriously jeopardizes employe rights in three ways:

1) A coalition is not an appropriate
unit for collective bargaining, nor is it a
certified bargaining
unit;

2) The coalition may not represent the
majority of all employes in all the individual units;

3) Since a coalition is not certified as
the exclusive bargaining representative of the individual
units, said bargaining is then contrary to the established rule of majority.

Page 21

Dec. No. 29477-B

The Union cites Kenosha County, Dec. No. 21130-A (Crowley, 7/84), where it was
found
that the union's insistence upon multi-unit bargaining was incompatible with the requirements
of
Section 111.70(4)(d)2.a., Stats., in that the unique interests of each separate bargaining unit
could
be subordinated to the interests of the coalition and that the establishment of separate units on
the
basis of statutory mandates could be completely undone by the requirements of coalition
bargaining
contrary to the intent of MERA.

The County's legal obligation as a municipal employer is to bargain collectively with
a
representative of a majority of its employes in an appropriate unit as contemplated by the
statute.
Multi-unit bargaining as demanded by the County denigrates the statutory process. In
multi-unit
bargaining, the individual unit concerns and specific issues are inevitably overridden by
multi-unit
issues. Under such circumstances, the municipal employer is not bargaining with an
appropriate unit
of its employes, but rather with various separate units combining together which cannot, by
virtue
of its composition, represent the interests of the employes in the manner contemplated by the
statute.

Next, the Union asserts that multi-unit bargaining is not required by Wisconsin law,
and
therefore cannot be demanded by a party. When the proposed structure of bargaining goes
beyond
the specific appropriate unit determined by the Commission, it is a permissive subject of
bargaining.
The composition of a party's bargaining team is a permissive subject of bargaining, and
absent
unusual circumstances, a refusal to meet with a party's bargaining team is a prohibited
practice.
Unified School District No. 1 of Racine County, supra., The Union also cites
federal case law
in support of its position, citing NLRB v. Indiana and Michigan Electric Company, 101
LRRM
at 2474, where it was held that an employer retains the right to resist union efforts aimed at
expanding
the scope of the employer's collective bargaining obligations, where the union attempted to
use
coordinated bargaining to force company-wide negotiations. Though Section
111.70(4)(d)2.d.,
Stats., does not prohibit multi-unit bargaining, it does not compel it. While parties may
discuss the
format for bargaining as a permissive subject of bargaining, to insist upon such a permissive
subject
to the point of impasse is a clear refusal to bargain in good faith.

While the County argues that multi-unit bargaining is appropriate because the wages,
hours
and conditions of employment of the Park and Land Use employes have been negotiated as
part of,
and included in, the Master Contract for the 23 years since they voted for union
representation, that
bargaining history is immaterial as multi-unit bargaining is not required for subsequent
negotiations.
The mere agreement to multi-unit bargaining in the past does not prohibit a party from
withdrawing
from such a voluntary agreement in the future. Although the parties may discuss, and even
agree, on
a specific bargaining structure, that arrangement does not obligate those parties forever.

Page 22

Dec. No. 29477-B

Finally, the Union asserts that the County's refusal to bargain is a blatant disregard
of
the law,
thereby rendering it liable for costs. The County raised a frivolous defense in this case
under Section
814.05(3)(b), Stats., which provides that it is frivolous where,

"The party or the party's attorney know or should have
known, that the action, special
proceeding, counter claim, defense or cross complaint was without a reasonable basis in law
or
equity, and could not be supported by a good faith argument for an extension, modification,
or
reversal of existing law".

The Union further notes that in its June 10, 1998 correspondence it supplied the
County with the
relevant statutes and case law which clearly and unequivocally supports the Union's position.
Despite
this, the County continued to flagrantly ignore the evidence, compelling the Union to
proceed. Given
the County's blatant disregard of the law, an order to cease and desist is insufficient to
adequately
address the violation. Thus, the Union seeks costs and attorney's fees.

County

The County notes that it negotiated a Master Contract covering the period from 1996
through
1998. Article 3 of that Agreement, the recognition clause, refers to ten groups or units, one
of which
under 3.01(1) is represented by Local 1365. The group referenced is "all Waukesha County
Park and
Planning Department employes in the classifications of Park Maintenance Man and Golf
Course
Superintendents, but excluding . . .as certified by the Wisconsin Employment Relations
Commission
under date of January 5, 1976, Decision No. 14157." The Park and Planning Department no
longer
exists and park work is now performed by the Parks and Land Use Department, and partially
performed by employes in classifications of Park Maintenance Worker, Park Foreman, and
Golf
Course Superintendent, all in the Parks and Land Use Department. There were 24 employes
in those
three classifications at time of hearing. Those classifications are not only specifically
referenced in
the recognition clause, but also in the specific appendix integrated in the Master Contract
referencing
their hours of work and certain other matters. Additionally, these "successor" job
classifications are
specifically referenced in the Master Contract's wage appendix. Neither party has proposed
in
bargaining to delete these classifications from the Master Contract, to change the recognition
clause,
or to bargain a separate contract for them. Rather, on May 19, 1998, the staff representative
for
Local 1365 notified the County that "Those employes represented by AFSCME Local 1365
will be
exercising their right to bargain separately in the upcoming negotiations." In a letter of May
22,
1998, the County's Labor Relations Manager, James Richter, noted that the employes in the
classifications in question had historically been negotiated as a part of, and included in, the
Master
Contract between the County and the Union, and indicated that to remove them from the
Master Unit
and negotiate a separate contract for them would "unduly fragment the existing unit."
Richter also
stated that the

Page 23

Dec. No. 29477-B

County was willing to commence negotiations with the Master Unit, and that if there
were particular
issues which the Union felt were unique to these employes represented by Local 1365, the
County
was willing to devote particular bargaining sessions or times to such issues. In its
communication
with the Union's Staff Representative for Local 2494, Michael Wilson, the County reiterated
that it
did not believe the Union was free to unilaterally break off a group of employes from the
Master
Contract who had been part of that contract for over 29 years. The County also suggested
that in
order to move forward in bargaining, the parties meet and negotiate as in the past pending a
decision
by the Commission, and that such bargaining would be without prejudice and not utilized as
evidence
in any Commission proceeding. The Union declined the suggestion and has refused to
bargain on that
basis.

The group of employes in the original classifications was voluntarily recognized by
the County
in 1969, and the current Master Contract contains essentially the same language in Sections
3.02 and
3.03 that was then found in Article 2 of the 1969 agreement. While the County took no
position in
the Commission proceedings in 1975 pursuant to a petition filed by the Teamsters Local 200,
there
were only two other bargaining units in existence in the County at the time, law enforcement
and
public health nurse units. By contrast, in 1998 there are five separate bargaining units
besides the
Master Unit. The Commission certification resulting from the election amongst these
employes in
1975 was a certification that Local 1365 was selected by a majority of eligible employes as
their
collective bargaining representative. After that election, those employes have remained in
the Master
Contract to the present time without any change whatsoever. That spans 14 contracts
negotiated by
the Union for the employes in the Master Unit, and during that time all those groups or units
have
been treated as one party under the terms of the contract.

The County also asserts that the organization and community of interest of employes
has
changed substantially since 1975. The Park and Planning Department has been totally
reorganized
and a much larger Park and Land Use Department created. This has included changes in
duties and
work locations of the employes in issue, as well as a change to joint supervision and
management and
an increase in the other employes they work with. The employes at issue work with other
AFSCME
represented employes in the Department in the clerical, Exposition Center Worker and
Carpenter
classifications, all of which are in the Master Contract. In contrast, in 1975, the park
employes had
little, if any, work contact with employes represented by Local 2494, there was no common
supervision, and the Exposition Center and the Museum were separate departments and the
ice arenas
were not in existence. Richter testified that the employes in the Master Unit share common
fringe
benefits, and that the employes in issue are covered by the same budget and management
policies and
procedures as other AFSCME-represented employes in the Park and Land Use Department
who are
covered by the Master Contract.

Page 24

Dec. No. 29477-B

The County asserts that if these employes are permitted to split into a new unit with a
new
contract, there would be no particular reason why any of the nine other groups or units of
employes
listed in the Master Contract could not claim the same right. Richter testified that under the
language
in Sections 3.02 and 3.03 of the Master Contract and over the many years of bargaining,
there has
been in effect a merger of the separate groups or units into the Master Contract. Also,
having
separate units involves the possibility of multiple cases going to mediation and arbitration.

The County asserts that to prove the alleged violation of MERA, the Union must
prove that
the "unit" for which it demands separate bargaining is appropriate under the law, and that the
employer has refused to bargain. The County has not refused to bargain with the Union for
the
employes in issue, rather, it has at all times been willing to bargain with those employes as
part of the
Master Contract, as it has since 1969. In a letter to Wilson, the County indicated that it was
willing
to bargain with the Master Unit as constituted, including these employes, and that it would
do so
without prejudice to the Union's position in this case. The County also indicated that if
those
employes had any proposals unique to them, the County would, as it had in the past, agree to
meet
in a separate session or sessions to discuss such issues.

As to an appropriate unit, the Union presented no evidence as to what, if any,
identifiable unit
remains from that certified for the 1975 election. There is no longer a Park and Planning
Department,
as it has been eliminated through reorganization, with its functions and organizations merged
into a
much larger Park and Land Use Department, and there are no longer classifications of Park
Maintenance Man or Greenskeeper. While the 1996-1998 Master Contract still references
the old
terms of "Park and Planning Department employes" and "Park Maintenance Men" and "Golf
Course
Superintendents", the recognition clause does not reference Greenskeeper, and the wage
appendix
under "Parks Department" lists Park Maintenance Worker, Exposition Center Worker, Golf
Course
Superintendent, Park Foreman and Lead Exposition Center Worker. The Union presented no
evidence as to which jobs, if any, were traceable to the former classifications referenced in
the
Commission's certification, nor evidence as to why the Exposition Center Workers should be
excluded, nor certain Carpenters included in the claimed unit. It is clear from the evidence
that the
Union's demand to carve out 24 employes represented by Local 1365 would leave at least 75
other
AFSCME represented employes behind who work with those 24 employes, are in the same
department, and are represented by Local 2494 as part of the same Master Unit. The
claimed
employes work with and interchange with those other represented employes in their
department, and
now share the same budget, same management, and the same wage system and benefits as
the other
employes in the new department. As to the old Park and Planning Department unit, those
classifications and the unit has been merged into the Master Unit and are no longer a
separate unit
for purposes of collective bargaining. Under Klopp's 1969 request for voluntary recognition
and the
County's 1969 agreement, the parties agreed to amend the Master Unit to

Page 25

Dec. No. 29477-B

include the "unit" in the Master Contract. After the 1975 election, by staying in the
Master Unit,
those classifications continued to be an integral part of the Master Unit. The language of
Section
3.01 of the Master Contract continued in effect in 1975:

"Should the Union, following certification by the WERC
become the collective bargaining
agent. . .it is agreed that Article III, upon written consent of the parties. . .may be amended
to include
the employe unit last certified. . ."

That agreement is ample evidence of the consent to that unit's inclusion. That group
of employes has
participated in bargaining the Master Contract since 1969 without interruption and it is
uncontroverted that the "groups" or "units" listed in the Master Contract have been treated as
one
party thereunder, as contemplated by the parties in Sections 3.02 and 3.03. Thus, the group
of
employes at issue have been merged into the Master Unit at least since 1975.

The legal doctrine of "merger" has been specifically articulated by the National Labor
Relations Board, hereinafter "Board". In Wisconsin Bell, Inc. v. Communication Workers
Local 4063, 283 NLRB No. 179, 125 LRRM 1108 (1987), the Board held that when the
union and
the employer agreed to amend their then-current labor agreement to merge a newly-certified
separate
unit into a larger unit, the larger unit became the "unit for collective bargaining purposes."
When the
same group which had been separately certified sought a decertification election, the Board
denied
the petition, indicating the only appropriate unit then existing was the larger merged unit.
The Board
stated, "The Board has long recognized the 'merger doctrine' under which an employer and
union
can agree to merge separately-certified or recognized units into one overall unit." That
doctrine had
been recently affirmed in the decision of Gibbs and Cox, Inc., 280 NLRB 110, 123 LRRM
1034
(1986). In Gibbs, the Board noted that the bargaining history as a merged unit is more
important
than other factors, such as community of interest, stating "a shared community of interest. .
.are,
however, of lesser cogency where a history of meaningful bargaining has developed." The
Board has
reached this "merged unit" principle even without a specific statutory anti-fragmentation
directive.
While the Commission is not bound to follow Board decisions, where such doctrines make
sense and
are consistent with the Commission's own caselaw and guiding statutes, they should be
considered.
In that regard, the merger doctrine is consistent with, and in furtherance of, the
anti-fragmentation
policy under MERA. The Union's business agent acknowledged that if this group is
permitted to split
off as a separate unit, she knows of no prohibition on the other groups or units to also
demand
separate bargaining and separate contracts. If the Commission orders separate bargaining for
this
group, it will

Page 26

Dec. No. 29477-B

lead to the disintegration of the Master Unit and the potential creation of nine
additional units. This
is the very kind of destabilization of labor relations and bargaining that the statute and the
Commission have long opposed.

While the Union asserts that the County is in effect demanding coalition bargaining,
the
contention that this "unit" has been in coalition bargaining for 30 years is ludicrous. The
parties have
never used the term "coalition bargaining" and it would be in direct contravention of their
intent and
actions as relates to the circumstances of recognition and the integration of employes into the
Master
Unit, and the specific language of the contract integrating them as part of the Union's
treatment as
"one party". In the decision in Kenosha County, it is clear that the Commission considered
that
coalition bargaining was the coming-together for bargaining purposes of separate units (with
separate
contracts) for the purpose of bargaining certain issues of common concern. Here, there was
no
"coalition"; rather, there was by agreement and history, a total functional merger of the
Parks group
into the Master Unit. The County is only seeking to maintain the "statusquo", and is not insisting
on coalition bargaining. It is the Union that seeks a unilateral change to the Master
Contract's
recognition clause.

Finally, the County asserts that it is uncontroverted that the 1975 unit description is
no longer
valid, as there is no longer a Park and Planning Department. The Union also seeks to
include two
Carpenters into this "unit" who are apparently not in the classifications specifically
referenced in the
1975 certification. The Union's business agent admits this, and also that the contract
contains
Carpenters who may work to some degree in the Park and Land Use Department, but who
may not
be the Carpenters sought to be included in the unit. Although Local 1365's president
testified that
two Carpenters paid dues to Local 1365, Richter also testified that other classifications in the
Master
Unit also have dues paid to Local 1365, such as the Exposition Center Worker and the Lead
Exposition Center Worker represented by Local 2494. The Union seeks an order that the
County
"recognize the separate certification and identity of Local 1365" and Bishofberger's demand
letter
of May 19 states that "Local 1365 will be exercising their right to bargain separately."
Locals do not
equal bargaining units. The Union takes the position that Local 1365 includes at least two
employes
who do carpenter work, but whose classifications are not referenced in the old certification.
When
asked if that position did not concede that the unit for which they claim separate bargaining
was not
appropriate, the Union responded that it was "laying groundwork" so that it would not have
to go
through "some rigamaroll as to who we are bargaining for." That "rigamaroll" would be a
Commission proceeding to determine whether a unit description should be modified.

Page 27

Dec. No. 29477-B

DISCUSSION

Section 111.70(3)(a)4, Stats., provides, in relevant part, that it is a prohibited
practice
for a
municipal employer

To refuse to bargain collectively with a representative of
a majority of its employes in an
appropriate collective bargaining unit. . .

As both parties have recognized, a finding of a violation of the duty to bargain requires
that the
employes demanding the right to bargain constitute "an appropriate collective bargaining
unit." In
that regard, the Union relies upon the Commission's certification in 1975 of a bargaining unit
of "all
regular full-time and regular part-time employes of the Waukesha County Park and Planning
Department in the classifications of Park Maintenance Man and Greenskeeper. . ."
Conversely, the
County asserts that the unit certified in 1975 no longer exists because it was merged by the
agreement
of the parties into the Master Unit consisting of nine other units that had been certified or
voluntarily
recognized and also represented by AFSCME. The County also asserts that the claimed unit
would
no longer be appropriate due to the reorganization and merger of departments.

Considering first the County's reliance on the "merger" doctrine, as the County
concedes, the
Commission is not bound by Board interpretation of the federal law, although it may take
guidance
from Board decisions. A review of Commission case law indicates that the Board's merger
doctrine,
as described in its decision in Wisconsin Bell, Inc., supra, and Gibbs & Cox, supra, has
been
rejected by the Commission. In the 1975 case involving these parties, the Teamsters Union
petitioned
for an election in a bargaining unit consisting of Highway Department employes and the
employes
in the Park and Planning Department in the Park Maintenance Man and Greenskeeper
classifications.
Both of these units were represented by the Union in this case and covered by the Master
Contract
between the County and the Union. The Highway Department unit had been certified by the
then-Wisconsin Employment Relations Board in 1966 and the Park and Planning Department
unit had been
voluntarily recognized by the County in 1969. The Master Contract contained the same
provisions
in 1975 as are contained in the 1996-98 Master Contract and relied upon by the County (now
Secs.
3.01, 3.02 and 3.03). While the Union argued in 1975 that the Teamsters were seeking to
combine
two units that lacked a community of interest, it also relied on the same facts as the County
and made
essentially the same argument to the Commission as the County now makes in this case
regarding
merger. In rejecting that argument, and finding the lack of a community of interest and the
right of
self-determination in existing units to be the predominant factors, the Commission implicitly
rejected
the doctrine of "merger". In ordering that elections be held in separate units of the Highway
employes and the Parks and Planning employes, the Commission explained:

Page 28

Dec. No. 29477-B

It should be noted that the Commission's decision
in no way conflicts with the
statutory mandate against unnecessary fragmentation of bargaining units. Although it is
possible that
the direction of election could lead to a disruption of the existing bargaining relationship
between the
three AFSCME locals and the Municipal Employer, said relationship developed out of
mutual
convenience and not as a result of any significant community of interest among the employes
in the
nine units covered by the master contract. The direction of election in this case merely
allows
employes in existing separate units to determine whether they wish to continue to be
represented by
the Intervenor.

Dec. No. 14157 (at p. 4).

Later, in Kenosha County, Dec. No. 21130-A (Crowley, 7/84), an examiner found a
refusal to
bargain violation on the part of the union based upon the union's refusal to bargain with the
county
unless it engaged in "coalition bargaining" as to the issues of common concern to all of the
county
units represented by the union. In finding the violation, the examiner reasoned:

Inasmuch as coalition bargaining is not
prohibited, a request for coalition bargaining
is not violative of MERA. However, because the effect of coalition bargaining is to merge
all units
into one unit to create a new unit, and since unit questions are not mandatory subjects of
bargaining,
coalition bargaining is also permissive and not a mandatory subject, i.e. primarily related to
wages,
hours and conditions of employment, and the Locals could not insist on coalition bargaining
to the
point of causing a deadlock in negotiations. The evidence established that the Locals would
only
negotiate with the County on a modified coalition bargaining basis, thereby refusing to
bargain
collectively with the County. Therefore, it is concluded that the Locals have committed a
prohibited
practice in violation of Sec. 111.70(3)(b)3, Stats.

It follows that, inasmuch as the Locals' demand
for coalition bargaining was
violatively maintained, the County's resistance to same was not a prohibited practice.
Section
111.70(3)(a)4, Stats., makes it a prohibited practice "To refuse to bargain collectively with a
representative of a majority of its employes in an appropriate collective bargaining unit." As
coalition
bargaining is not required by MERA, the County could lawfully insist that bargaining be
confined to
the established appropriate bargaining units. The evidence failed to prove that the County
refused
to negotiate within the appropriate collective bargaining

Page 29

Dec. No. 29477-B

unit scheme. The Locals argued
that the County refused to meet on the issues of local
concern for each unit. The Locals expressed willingness to meet on unit specific proposals
while
insisting common issues be discussed with the coalition.

(At 11; citations omitted)

In affirming the examiner's decision, the Commission stated:

We entirely agree with the Examiner as regards both his outcome and rationale.

. . .

We also agree with the Examiner that to compel
the County, over its objection, to
bargain on a coalition basis as regards an agreement on common-concern issues binding on
more than
one unit, would undercut the significance of our prior certification of the five separate units
involved
herein as appropriate units for collective bargaining purposes. It might be possible, through
a timely
and successful representation petition proceeding, for the Unions to remove the legal barriers
to
Union insistence on bargaining for broader grouping(s) of the County employes involved
herein.
However, at present, the existence of the five separate units renders unlawful the Unions
insistence
on coalition or modified bargaining in the face of County objections.

The fact that in the past the
County has voluntarily bargained with a coalition of the
instant locals does not alter our conclusion in that regard. Establishment of a multi-unit
coalition or
modified bargaining structure, like the contours of the bargaining unit itself, is a permissive
subject
of bargaining. The Unions may request that bargaining be so structured and the County
may agree
upon such an arrangement. However, after the term of any such agreement, the County is
free to
refuse to continue to bargain in the coalition or modified coalition structure that it had agreed
to
operate under to various degrees in the past.

Dec. No. 21130-B (WERC, 2/85 at
pp. 5-6. (Citations omitted)).

While the facts in Kenosha County were not as supportive of the application of the
merger doctrine
as in this case, the Commission's reasoning is again instructive as to the significance it places
on its
having certified a bargaining unit as appropriate. In that regard, see also Manitowoc
Memorial
Hospital, Dec. No. 11952 (WERC, 6/73) cited by both the examiner and the Commission in
Kenosha County.

Page 30

Dec. No. 29477-B

The County has also alleged that the unit of Park Maintenance Men and
Greenskeepers
certified in 1975 is no longer an appropriate unit due to the merger of the Park and Planning
Department with other county departments to form the Park and Land Use Department in
1995. The
record indicates that the Park Maintenance Man classification was subsequently changed to
the Park
Foreman and Park Maintenance Worker classifications and the Greenskeepers were retitled
Golf
Course Superintendents. It also appears that the Park Maintenance Workers and Park
Foremen
perform the same or similar functions as employes in the Park Maintenance Man
classification
performed in 1975, albeit at more locations. There are presently six Park Foremen, 15 Park
Maintenance Workers and three Golf Course Superintendents, and all of them report to the
Parks
Supervisor. Of the other employes cited by the County, i.e., the clerical employes, the Lead
Exposition Center Worker, the Exposition Center Worker, Sanitarians, Archivist, Museum
Exhibit
Technician and the Carpenters, it appears that only a few of the clerical employes, the Lead
Exposition Center Worker, the Exposition Center Worker, and the Carpenters have any
interaction
with these employes. As the clerical employes, the Lead Exposition Center Worker and the
Exposition Center Worker work indoors, while these employes primarily work outdoors, the
amount
of interaction between them appears questionable. More importantly, the Commission has
consistently held that Sec. 111.70(4)(d)2.a., Stats., requires that the unit sought is
an appropriate unit,
not that the unit sought is the most appropriate unit. Oconto School District,
Dec. No. 29295
(WERC, 1/98); Marinette School District, Dec. No. 27000 (WERC, 9/91); City of Green
Bay
(City Hall), Dec. No. 21210-A (WERC, 3/84). In Marinette School District, the
Commission
explained:

Although the statute directs that the Commission
"whenever possible" avoid
fragmentation of units, it does not specify that there be only one potentially appropriate unit
in a given
situation. Accordingly, the Commission is not precluded from finding that the Union's
proposed
bargaining unit, which is of more limited composition that the overall residual unit proposed
by the
District, is consistent with the statute. Our role is to determine whether the unit sought is an
appropriate unit, not whether the unit sought is the most appropriate unit.

The Commission has interpreted Sec.
111.70(4)(d)2.a., Stats. to mean that at times
there is a need for a mix of bargaining units which afford employes the opportunity to be
represented
in workable units by organizations of their own choosing, which may reasonably be expected
to be
concerned with the unique interests and aspirations of the employes in said unit. Therefore,
the
Commission has the obligation to strike a balance between the antifragmentation proscription
of the
statute and the need for ensuring that the unique interests of a

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Dec. No. 29477-B

given group of employes will not
be subordinated to the interest of others in a bargaining
group. However, units cannot be so fragmentized so as to be inadequate for bargaining. . .

(At pp. 11-12; citations omitted)

Thus, even if a more appropriate unit could be fashioned, that
does not necessarily affect the
appropriateness of the unit certified in 1975. If the County feels that a unit of Park
Foremen, Park
Maintenance Workers and Golf Course Superintendents no longer constitutes an appropriate
unit,
as the Commission noted in its decision in Kenosha County, it might be possible through a
timely
and successful representation petition proceeding to remove the legal barriers to insistence on
bargaining for a broader group of County employes than just those employes. Given the
Commission's prior certification of this unit, the burden in that regard is on the County. It
is noted,
however, that the County's assertion that a broad unit consisting of all the employes in the
units
covered by the Master Contract constitutes an appropriate unit was previously made by the
Union
in the 1975 proceedings and rejected by the Commission based upon a lack of community of
interest
among those groups.

It is also noted that although two employes listed as eligible to vote in the 1975
election in
this unit were identified as "carpenters" by Local 1365's President, it is not clear whether
they held
such a classification at the time or were Park Maintenance Men performing primarily
carpentry work.
As the Carpenter classification was not included in the unit description in 1975 and there is
such a
classification listed in the Master Contract as part of "Maintenance", the evidence is not
sufficient to
determine whether or not to include them at this point.

Finally, with regard to the County's assertion that it has not in fact refused to bargain
with
Local 1365 regarding these employes, the record establishes otherwise. As the union in
Kenosha
County conditioned bargaining with the county separately regarding the unique issues of the
separate units upon agreeing to coalition bargaining on the issues of common concern to all
of the
units, the County has made essentially the same offer to Local 1365. In his letter of May
22, 1998
to Bishofberger, Richter made the following offer:

While these employees do not have a statutory right to a
separate unit for the purposes of
collective bargaining, once negotiations have commenced concerning the Master contract, the
County
would be willing to devote a particular bargaining session or sessions to any issues that you
believe
are unique to the Parks and Land Use Department employees.

In his June 30, 1998 letter to Wilson, Richter stated:

Page 32

Dec. No. 29477-B

It would be the County's suggestion that until this matter
is resolved, the parties move
forward in their bargaining as we have in the past. The County would agree that bargaining
which
includes the Park and Land Use employees as well as the other employees in the master
agreement
for the current bargaining for a new contract will be without prejudice and will not be
utilized as
evidence in any WERC proceeding.

Until this matter is agreed upon or
resolved by decision, however, the County does not agree
to separate bargaining which is unilaterally proposed here.

Just as the Commission found in Kenosha County, that conduct constitutes a refusal to
bargain
under MERA. Further, the County's offer contained an express refusal to bargain a separate
contract
with Local 1365 covering only these employes.

Based upon the foregoing, the Examiner has concluded that the County has refused to
bargain
with Local 1365 in violation of Sec. 111.70(3)(a)4, and derivatively, 1, Stats., and ordered
that it
cease and desist in that regard. The Examiner has not awarded the Union costs and
attorney's fees
as requested. The County's position in this case is not without some legal basis. The
County has
relied in part upon the doctrine of "merger" which has been applied by the Board under
federal law.
While the Commission has at least implicitly rejected that doctrine, it has not done so
expressly.
Further, twenty-three years have passed since the Commission's earlier ruling certifying this
bargaining unit and the factual circumstances have changed over that time. While the
Examiner has
rejected the County's various legal arguments in this case, he cannot conclude that the
County's
position was so without a basis in fact or law as to be "frivolous" or constitute "bad faith"
as is
required to award such relief. City of Whitewater, Dec. No. 28972-B (WERC, 4/98);
Wisconsin
Dells School District, Dec. No. 25997-C (WERC, 8/90).